California Supreme Court Again Considers Climate Change in the Context of CEQA, But Fails to Resolve Important Uncertainties for Future Environmental Review

Today, in an opinion authored by Justice Liu, the California Supreme Court ruled that the greenhouse gas analysis in an environmental impact report (“EIR”) prepared for the San Diego Association of Government’s (“SANDAG”) regional transportation plan (“RTP”) did not violate the California Environmental Quality Act (“CEQA”), but did little to resolve uncertainties in addressing climate change issues under CEQA. As we previewed in our May discussion of the oral argument in this case, Cleveland National Forest Foundation v. San Diego Association of Governments, the majority of the Court found that SANDAG’s discussion of the impacts of greenhouse gas emissions was adequate given the state of science and guidance, at least at the time of the issuance of the RTP in 2011. The Supreme Court cautioned, however, that this EIR should not be considered a template for future projects as developing science and regulations will likely provide further guidance on this issue.

The sole question the court reviewed in this case is whether CEQA required SANDAG to analyze the consistency between the RTP and Executive Order No. S-3-05 (“Executive Order”) in assessing the significance of the RTP’s impact on greenhouse gas emissions in 2050. The lower courts had ruled that the EIR, which acknowledges that greenhouse gas emissions would initially decline but then increase significantly through 2050, did not adequately analyze the consistency between the RTP and the long-term greenhouse gas emission reduction targets set by the Executive Order.

In what it deemed a narrow ruling, the Supreme Court upheld the EIR, finding that SANDAG did not abuse its discretion by declining to adopt the Executive Order as a measure of significance because the order does not specify any plan or implementation measures to achieve its goal, particularly at a local or regional level. Further, the Court found that, given the lack of clarity around the role of an RTP in meeting greenhouse gas reduction goals, the EIR met the minimum requirements of CEQA, stating:

Although there were perhaps clearer or more graphic ways the EIR could have facilitated comparison between 2050 projected emissions and the Executive Order’s 2050 emissions reduction target, we find that the EIR presented the information enabling the comparison in a manner calculated to adequately inform the public and decision makers.

The Court noted, however, that the level of analysis in this EIR should not be considered a template. The development of additional regulations mandated by the 2016 passage of SB 32, codifying the state’s 2030 greenhouse gas reduction goals, will likely provide further guidance to local agencies to address the state’s 2050 goals. The Court also agreed with several critiques of the EIR, including that:

Designating emission increases as “significant” does not excuse an agency from describing the nature and magnitude of the adverse effect;

SANDAG’s position that its role in achieving the Executive Order’s statewide emission reduction goal is “likely small” is not alone a valid reason to dismiss adoption of these targets as measures of significance; and

The Executive Order cannot be dismissed because it is not an adopted greenhouse gas reduction plan, but must be considered in the EIR as a valid expression of “scientific and factual data.”

This marks the second major Supreme Court case to address the treatment of greenhouse gas emissions under CEQA (the first case, Center for Biological Diversity v. California Department of Fish and Wildlife, was discussed in a prior Legal Alert). In neither opinion has the Court made definitive statements sufficient to address the uncertainties agencies are facing in integrating climate analysis under CEQA. In Center for Biological Diversity, the Court offered some “potential options” for CEQA compliance, but warned that it could not “guarantee that any of these approaches will be found to satisfy CEQA’s demands.” In Cleveland National Forest, the majority instructs that SANDAG’s approach is likely inadequate for future EIRs, but provides little guidance on what is expected. In addition, in what may be a harbinger of rulings to come on this topic, Justice Cuellar, in a strident dissent, issues a warning that the state’s goal to “dramatically reduce greenhouse gas emissions and vehicle use” is clear and CEQA requires any plan that would increase these emissions to directly address this “elephant in the room.”

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